A Legal Reporter of the Mississippi-AlabamaSea Grant Consortium

WATER LOGVolume 26, Number 3

Louisiana Crawfish Producers Assn. v. Rowan, 2006WL 2474845 (5th Cir. Aug. 29, 2006)

Rick Silver, 3L, University of Mississippi School of Law

On August 29, 2006 the U.S. Court of Appeals for theFifth Circuit rejected an appeal brought by theLouisiana Crawfish Producers Association (LCPA),which challenged both the environmental assessmentperformed by the Army Corps of Engineers and theCorps’ conclusion that the proposed project in Buffalo

Cove would have no significant environmental impact.The court affirmed the Corps’ decisions.

BackgroundIn 1982 the Corps issued a Final EnvironmentalImpact Statement (FEIS) for the Atchafalaya Basin inLouisiana. The Basin is a flood control area that drainsapproximately 41 percent of the continental UnitedStates. The Corps’ goal was to ensure passage of waterthrough the Basin, while restoring and maintaining itshistorical conditions. The FEIS divided the Basin into

Coliseum Square Assn., Inc. v. Jackson, 2006 WL2664455 (5th Cir. Sept. 18, 2006)

Joshua R. Holmes, 2L, Stetson University College ofLaw

A group of non-profit organizations representing citi-zens, residents, and merchants in New Orleans broughtan action against the Department of Housing andUrban Development (HUD) seeking a declaratoryjudgment that HUD had failed to comply with theNational Environmental Policy Act of 1969 (NEPA)and the National Historic Preservation Act (NHPA) infunding the St. Thomas Housing Development revital-

Fifth Circuit Rejects Crawfish Producer’s NEPA Challenge

Fifth Circuit Upholds AgencyDecision in New Orleans

Housing Project Case

In This Issue . . .Fifth Circuit Rejects Crawfish Producer’s NEPA

Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Fifth Circuit Upholds Agency Decision in New Orleans Housing Project Case . . . . . . . . . . . . . . . . 1

Despite Tragedy, Eleventh Circuit Refuses to Second-Guess Coast Guard . . . . . . . . . . . . . . . . . . 5

Fifth Circuit Upholds Forum-Selection Clause in Ship Deal . . . . . . . . . . . . . . . . . . . . . . . . . . 8

La. Court Finds No Right to Fish, Hunt on River . . . . . . . . . . . . . . . . . . . . . . 10

Fifth Circuit Affirms Decision in Mississippi River Ship Collision Case . . . . . . . . . . . . . . . 12

Notice of Publication . . . . . . . . . . . . . . . . . . . . 14

Interesting Items . . . . . . . . . . . . . . . . . . . . . . . . . 15

Upcoming Conferences . . . . . . . . . . . . . . . . . . . . 16

See Crawfish, page 2

See Coliseum Square, page 3

November 2006

thirteen Management Units. One of these Units wasBuffalo Cove, the subject of this dispute. The Corps’plan for Buffalo Cove called for a series of pipelines andfor the creation of spoilbanks which would capture andconvey water and sediment. However, these spoilbanksalso restricted public access.

In accordance with the National EnvironmentalPolicy Act (NEPA), from 1999-2003 the Corps per-formed an environmental assessment (EA) on theBuffalo Cove Management Unit. The EA stated thatthe goal of the project was “to improve interior circula-tion within the swamp; remove barriers to facilitatenorth to south flow; provide input of oxygenated, lowtemperature river water; and prevent or manage sedi-ment input into the interior swamps.”1

In July of 2003, the Corps opened the project topublic review and comment. Of the 134 comments,only thirty-two opposed the Corps’ assessment. OnMarch 15, 2004, the Corps entered a Finding of NoSignificant Impact (FONSI) for the Buffalo Cove pro-ject. This finding allowed the Corps to proceed with theproject.

The LCPA, a non-profit organization of commer-cial crawfishermen, proposed an alternative plan forBuffalo Cove during the public notice and commentperiod. The LCPA wanted the Corps to “open up thehistorical bayous and enforce the permit requirementsfor the pipelines.”2 The EA performed by the Corps did

not address this alternative and the LCPA sought aninjunction of the project, arguing that the FONSI wasin error since the Corps disregarded its proposed alter-native. The district court ruled in favor of the Corpsand the LCPA appealed to the Fifth Circuit.

NEPANEPA requires all federal agencies to prepareEnvironmental Impact Statements (EISs) for “majorfederal actions significantly affecting the quality of thehuman environment.”3 An EIS is not required if thefederal action is not major or does not have a significantimpact on the environment. In order to determine if anEIS is necessary, an agency must perform an EA, whichis a “low budget environmental impact statementdesigned to show whether a full-fledged EIS is neces-sary.”4 If an EIS is not found to be necessary, then aFONSI will be issued and the project may proceed.

Fifth Circuit’s AnalysisThe court began by acknowledging that an agency’sNEPA decisions should be afforded a considerabledegree of deference and that “courts are to uphold theagency’s decision unless the decision is arbitrary, capri-cious, an abuse of discretion, or otherwise not in accor-dance with the law.”5

The first issue that the court addressed waswhether or not the Corps was required to consider andreject the LCPA’s proposed alternative in the EA.LCPA argued that any reasonable alternative must beincluded in the EA, and that since its proposed planwas reasonable, it should have been included in theBuffalo Cove EA. Alternatively, the Corps asserted thatthe proposal was impractical and would produce moresedimentation in Buffalo Cove, as opposed to theCorps’ goal of reduced sedimentation.

While the court acknowledged that NEPA doesmandate the discussion of alternatives in the EA, thecourt noted that the regulation does not require that allproposed alternatives be discussed in the EA; there mustbe some limit to the number of alternatives considered.The court held that since the Corps believed that theLCPA’s project would result in counterproductive sedi-mentation, the Corps was not arbitrary and capriciousin choosing to reject the LCPA’s proposed alternative.

The second question the court faced was whetherthe Corps’ FONSI was arbitrary and capricious, as theLCPA argued. The LCPA asserted that the Corps’FONSI was arbitrary and capricious for three reasons.

WATER LOG is a quarterly publicationreporting on legal issues affecting theMississippi-Alabama coastal area. Its goal isto increase awareness and understanding ofcoastal problems and issues.

To subscribe to WATER LOG free of charge, contact:Mississippi-Alabama Sea Grant Legal Program, 262Kinard Hall, Wing E, P. O. Box 1848, University, MS,38677-1848, phone: (662) 915-7775, or contact us via e-mail at: waterlog@olemiss.edu . We welcome suggestionsfor topics you would like to see covered in WATER LOG.

Editor: Josh Clemons, M.S., J.D.

Publication Design: Waurene Roberson

Contributors:Jim Farrell, 3L • Joshua R. Holmes, 2LRick Silver, 3L • Allyson L. Vaughn, 3L

For information about the Legal Program’s research, ocean and coastal law, and issues of WATER LOG, visit our homepage at

http://www.olemiss.edu/orgs/SGLC

Page 2 WATER LOG 2006 VOL. 26:3Crawfish, from page 1

See Crawfish, page 4

VOL. 26:3 WATER LOG 2006 Page 3

ization project. It further sought an injunction prevent-ing HUD from dispersing further funds until such timeas it complied with those statutes. The U.S. Court ofAppeals for the Fifth Circuit held that, because it didnot appear that HUD acted “arbitrarily, capriciously, orcontrary to law”1 in its findings of the project’s envi-ronmental impacts, HUD was in full compliance withthe requirements of the statutes.

Overview of the StatutesNEPA sets procedural requirements that agenciesmust follow to determine what environmental impactstheir proposals will have. Under the proceduralrequirements established by NEPA, a proposal for amajor federal action must include anEnvironmental Impact Statement (EIS).2 NEPAgives the Council of Environmental Quality (CEQ)authority to issue regulations that interpret thestatute.3 According to CEQ regulations, an agencymay prepare an Environmental Assessment (EA) andissue a “finding of no significant impact” (FONSI) ifthe action is excluded from the requirement to pro-duce an EIS.4

NHPA imposes requirements that an agencyundertaking a federally assisted project must followprior to the approval of expenditure of funds.5 The fed-eral agency must take into account the effects that theproject may have on historical sites.6 The agency mustalso follow certain procedural requirements in thereview process, such as consulting with the StateHistoric Preservation Officer (SHPO) and allowing theAdvisory Council on Historic Preservation (ACHP) anopportunity to comment.7

Factual BackgroundIn 1994, the Housing Authority of New Orleans(HANO) began an effort to renovate the St. ThomasHousing Development, a residential public housingcomplex in the Lower Garden District. In 1996, HUDgranted HANO $25 million for St. Thomas’ revitaliza-tion and became responsible for ensuring that the pro-ject satisfied the requirements of NEPA and NHPA.

The initial plan for the St. Thomas project onlyincluded housing units. HANO enlisted the help ofHistoric Restorations, Inc. (HRI) to improve the plan.An amended plan submitted to HUD in 2000 includ-ed new low-income housing, new market-rate housing,a senior care facility, and a retail shopping center.

In Fall of 2000, HUD completed the reviewrequired by NHPA which examined the environmental

impact the project would have on the historical sites.HANO, the SHPO, and the ACHP signed a Mem-orandum of Agreement for the project and demolitionbegan shortly after. In May 2001, the NEPA environ-mental assessment review was completed and HUDadopted the proposed EA/FONSI.

After HRI obtained a commitment from Wal-Martto become the retailer, the SHPO asked to reopen theNHPA file to determine the effects Wal-Mart may haveon historical properties in the area. As a result of thestudy, HUD determined the assessment of the project’spotential effects should be expanded. In July 2002 theplaintiffs filed suit, claiming non-compliance withNEPA and NHPA. Consequently, HUD reopened theNEPA process and a new EA/FONSI was approved inFebruary 2003.

Court’s DecisionThe plaintiffs first argued that noise levels and thenumber of housing units affected by the project auto-matically required HUD to produce an EIS. The courtfound that HUD’s reliance on a 2002 noise survey,which measured noise within a specific area over a 24-hour period, was consistent with agency proceduralrequirements and a reasonable method by which tomeasure potential noise effects. The court then paiddeference to HUD’s interpretation of a CEQ regulationmandating preparation of an EIS if 2,500 dwellings areaffected by a project. It found HUD’s interpretationthat the regulation created two categories of affecteddwellings to be reasonable.

The remainder of the plaintiffs’ arguments con-cerning HUD’s environmental assessment focused ontheir contention that HUD’s failure to prepare an EISwas contrary to law. In cases attacking an agency’s deci-sion not to prepare an EIS, the plaintiff must prove theallegations by a preponderance of the evidence; theplaintiff must show more than mere deficiencies.8

The court examined various areas of HUD’s study,such as environmental justice, zoning, businessesoccupying historic buildings, toxic and hazardouswaste, lead contamination, and traffic. It found that inevery instance the plaintiffs offered no evidence thatHUD acted “arbitrarily, capriciously, or contrary tolaw.”9 The plaintiffs offered evidence of differentmethodology that might illustrate deficiencies inHUD’s review; however, their proffered evidencefailed to prove their allegations by a preponderance ofthe evidence. Thus, the court denied the plaintiffs’request for an injunction.

Coliseum Square, from page 1

See Coliseum Square, page 4

ConclusionHaving determined that HUD had not acted arbitrari-ly, capriciously, or contrary to law when it decided thatno EIS was required for the St. Thomas project, andthat the district court had not committed any reversibleerror in its consideration of the case, the Fifth Circuitaffirmed the agency and the lower court.

Endnotes1. 5 U.S.C. § 706(2)(A).2. 42 U.S.C. § 4332(2).

3. 40 C.F.R. § 1500.3.4. Dept. of Transportation v. Public Citizen, 541 U.S.

752, 757 (2004).5. 16 U.S.C. § 470f.6. Id.7. Vieux Carre Prop. Owners Residents and Associates,

Inc. v. Pierce, 719 F.2d 1272, 1281 (5th Cir. 1983).8. La. Wildlife Fed. Inc. v. York, 761 F.2d 1044, 1055

(5th Cir. 1985). 9. Id.

Page 4 WATER LOG 2006 VOL. 26:3Crawfish, from page 2

Coliseum Square, from page 3

First, the LCPA claimed that the Corps’ EA failedto account for the cumulative impact of the BuffaloCove projecton the sur-roundingareas.

However, the court found that the lengthy discussion inthe EA on the cumulative impact of the project wasquite adequate. The court also pointed out that withregard to the cumulative impact of future actions, theCorps is only required to consider actions that are “rea-sonably foreseeable.”6

Next, the LCPA argued that the original 1982FEIS, which the Corps’ EA relied on, was out of date.The court, relying on precedent, held that “mere pas-sage of time rarely warrants an order to update theinformation to be considered by the agency.”7

Lastly, the LCPA asserted that the Corps’ FONSIwas in error because the Buffalo Cove project wouldresult in significant environmental impacts. The court,however, was unswayed by the LCPA’s argument andfound that the impact of the project was not “so severe

as to render it significant within the meaning of theregulation.”8 Accordingly, the court held that theCorps’ FONSI was not arbitrary and capricious.

ConclusionShowing deference to the Corps of Engineers,

the Fifth Circuit denied an appeal by theLouisiana Crawfish Producers Associa-

tion to overturn the Corps’ envi-ronmental assessment and Find-ing of No Significant Impact

with regard to its proposed project tomanage water flow and sediment in theBuffalo Cove Management Unit of the

Atchafalaya Basin.

Endnotes1. Louisiana Crawfish Producers Assn. v.

Rowan, 2006 WL 2474845 at *3 (5thCir. Aug. 29, 2006).

2. Id. 3. 42 U.S.C. § 4332(2).4. Louisiana Crawfish Producers Assn. at *4 (citing

Sabine River Auth. v. U.S. Dept. of Interior, 951 F.2d669, 677 (5th Cir. 1992)).

5. Louisiana Crawfish Producers Assn. at *4.6. 40 C.F.R. § 1508.7.7. Louisiana Crawfish Producers Assn. at *6 (citing

Sierra Club v. U.S. Army Corps of Engineers, 701 F.2d1011, 1036 (2nd Cir. 1983)).

8. Louisiana Crawfish Producers Assn. at *6.

Cranford v. United States, No. 06-10685, 2006 WL2827680 (11th Cir. Oct. 5, 2006)

Jim Farrell, 3L, University of Mississippi School of Law

IntroductionWhen Ronald Melech, Howard Melech, and EddieCranford went boating on August 9, 2003, they couldnot have foreseen the hidden danger awaiting them inMobile Bay. Seventy-three years earlier, the federalWorks Progress Administration “deliberately sank” aU.S. Army Mine Planter “to serve as a breakwater” andcreated what came to be known as the Fort MorganWreck.1 The U.S. Coast Guard first charted andmarked the wreck in 1992. Over the years, the CoastGuard modified the original marker from a “temporarylighted buoy” to a piling with two warning signs placed“164 feet north-northwest of the part of the wreck clos-est to the surface.”2 Only four days before the Cranford-Melech outing, the Coast Guard, in response tonumerous reports of collisions with the wreck in recentyears, had again changed the marker, “replac[ing] thesigns with a flashing light and a six-foot-wide red tri-angle with the letters ‘WR2.’”3

Like its predecessors, thenew marker failed to providesufficient warning of thedanger lurking just be-neath the water’s seeminglyinnocuous surface.

As Eddie Cranford andthe Melech brothers traveledeast across Mobile Bay thatSaturday, they could not seethe submerged vessel eventhough parts of the FortMorgan Wreck rested onlysix to eighteen inches belowthe surface. When theirseventeen-foot motorboatstruck the wreck at thirtymiles per hour, Ronald andEddie were thrown from theboat. Although Howard was

eventually able to locate and pull Eddie back into theboat, officials did not find his brother’s body until thefo l lowing day. Eddie Cranford and HowardMelech sued the government for their personal injuries,and Diane Melech sued on behalf of her deceased hus-band, Ronald. After consolidating the lawsuits, the dis-trict court promptly dismissed the claims for lack ofsubject matter jurisdiction, holding that the CoastGuard had not waived its sovereign immunity.

Sovereign ImmunityDespite the tragic details of their case, Cranford and theMelechs faced the unenviable task of suing the U.S. torecover for their losses. In the opening pages of its opin-ion the Eleventh Circuit hinted at the futility of theplaintiffs’ claims, reminding them that “[t]he UnitedStates is immune from suit unless it consents to besued.”4 The plaintiffs brought their claims under theSuits in Admiralty Act (SAA) and the Public Vessels Act(PVA) which both “provide[ ] a waiver of sovereignimmunity . . . for admiralty claims against the UnitedStates.”5 Despite this statutory vulnerability in the oth-

Vol. 26:3 WATER LOG 2006 Page 5

Despite Tragedy, Eleventh Circuit Refuses toSecond-Guess Coast Guard

See Cranford, page 6

Photograph of Mobile Bay courtesy of Sandia National Laboratories.

Page 6 WATER LOG 2006 VOL. 26:3

erwise impenetrable shield of the federal government,the Eleventh Circuit warned future plaintiffs againstbecoming overly optimistic about their chances of pre-vailing on claims brought against the U.S. because “thewaivers [in both the SAA and PVA] are subject to thediscretionary function exception of the Federal TortClaims Act.”6

The Discretionary Function ExceptionThe discretionary function exception seeks to “preventjudicial ‘second-guessing’ of legislative and administra-tive decisions grounded in social, economic, and polit-ical policy through the medium of an action in tort.”7

In U.S. v. Gaubert the Supreme Court “‘developed atwo-step test to determine whether the government’sconduct meets the discretionary function exception.’”8

First, courts are required to “consider . . . whether theconduct involves ‘an element of judgment or choice.’”9

If the government adhered to “‘a federal statute, regula-tion, or policy specifically prescrib[ing] a course ofaction embodying a fixed or readily ascertainable stan-dard,’”10 the conduct will be afforded the protection ofsovereign immunity becauseit did not involve an elementof judgment or choice. If not,the conduct still remains eli-gible for protection if it pass-es the second step of theGaubert test: if the conductthat involved an element ofjudgment or choice “isgrounded in considerationsof public policy,”11 then thecourt must find that the con-duct remains safely protectedfrom attack behind the shieldof sovereign immunity.

The Marking of the WreckCranford and the Melechs first argued that the CoastGuard should be held liable based on its marking of theFort Morgan Wreck. In addition to their belief that theCoast Guard had acted negligently by designating thewreck with only one marker, the plaintiffs also faultedthe Coast Guard for its careless placement of that mark-er. Undisputed evidence indicated that the CoastGuard had initially “plac[ed] the marker 164 feet awayfrom the wreck” and had never moved the marker clos-er to the wreck despite numerous reports of collisionswith the wreck over the years.

Applying the first step of the Gaubert test, thecourt quickly concluded that the Coast Guard’s mark-ing of the wreck “involved elements of judgment orchoice.”12 After reviewing applicable statutes, regula-tions, and internal guidelines, the court noted the“broad discretion [that the Coast Guard had beengiven] in deciding how to mark a wreck.”13 Moreimportantly, the court noted the plaintiffs’ “fail[ure] toidentify ‘a federal statute, regulation, or policy [that]specifically prescribe[d] a course of action embodyinga fixed or readily ascertainable standard.’”14

The court appeared willing to accept an argumentthat the Coast Guard failed to ground its decision inconsiderations of public policy; however, the plaintiffsadvanced an ineffective argument that the Coast Guardhad considered nothing more than the financial impli-cations of its decision. Although the court agreed withthe plaintiffs that “[f ]inancial considerations alone maynot make a decision one involving policy,”15 it foundthe government’s argument more persuasive. The gov-ernment admitted that the Coast Guard had “evalu-at[ed] . . . resource constraints,” but it also argued that

the Coast Guard consideredboth “the knowledge and cus-toms of international ma-riners” and the competing“needs of pleasure and com-mercial watercraft.”16

Because the CoastGuard’s marking of the FortMorgan Wreck satisfied boththe first and second steps ofthe Gaubert test, the courtfound that the Coast Guardhad not waived its immunity.

The Decision Not to Remove the WreckCranford and the Melechs also contended that theCoast Guard waived its immunity by failing to removethe Fort Morgan Wreck because, they claimed, thedecision failed the first step of the Gaubert test.Pointing to a federal statute that “specifically pre-scribe[d] a course of action embodying a fixed or read-ily ascertainable standard,” the plaintiffs argued thatthe Coast Guard’s decision not to remove the wreckinvolved an impermissible “element of judgment orchoice.”17 The plaintiffs argued that section 409 of theWreck Act “impose[d] a nondiscretionary duty on thegovernment to remove the . . . [w]reck” because of itsprohibition against obstructing waters and the

Cranford, from page 5

Photograph of sunken wreck courtesy of the United States Environmental Protection Agency.

VOL. 26:3 WATER LOG 2006 Page 7

requirement that “owners promptly . . . removesunken vessels.”18

The Eleventh Circuit applied a textual interpreta-tion to dismiss the plaintiffs’ argument. First, the courtreasoned that because the Wreck Act was enacted aspart of the Rivers and Harbors Appropriation Act of1899, the court had an obligation “to read [section409] together with the other sections of that statute.”19

Since section 403 “authorize[d] the creation ofobstructions, including breakwaters,” the court con-cluded “it would be absurd to read section 409 torequire the government immediately to remove a vesselthat it deliberately sank for a public purpose.”20 Finally,the court disagreed with the plaintiffs that section 409imposed on the Coast Guard a nondiscretionary dutyto remove the wreck. Because the last clause of section409 explained that failure to remove a sunken vesselwould merely “subject the [vessel] to removal by theUnited States,”21 the Eleventh Circuit interpreted suchremoval as discretionary.

The Eleventh Circuit did not analyze the CoastGuard’s decision not to remove the wreck under thesecond step of the Gaubert test since the plaintiffs con-ceded that the government’s intentionally sinking a ves-sel to serve as a breakwater represented a decision thatclearly contemplated public policy considerations.

ConclusionThe federal government’s shield of sovereign immuni-ty, though not impenetrable, has few weaknesses, andone of those weaknesses, waiver, boasts its own defense

in the form of the discretionary func-tion exception. Designed to preventjudicial second-guessing of legislativeand administrative decisions, the dis-cretionary function exceptionachieved its purpose in Cranford.Having found both of the plaintiffs’claims subject to the exception, theEleventh Circuit affirmed the districtcourt’s dismissal of the case for lack ofsubject matter jurisdiction. The courtacknowledged the horrific details ofthe Cranford-Melech tragedy, but thediscretionary function exception’sapplication prevented the EleventhCircuit from second-guessing eitherthe Coast Guard’s marking of theFort Morgan Wreck or its decisionnot to remove the wreck.

Endnotes1. Cranford v. U.S., No. 06-10685, 2006 WL

2827680 at *1 (11th Cir. Oct. 5, 2006).2. Id. 3. Id.4. Id. at *2.5. See Suits in Admiralty Act, 46 U.S.C. app. §§ 741-

52 (2000) (covering claims that do not involvepublic vessels); Public Vessels Act, 46 U.S.C. app.§§ 781-90 (2000) (covering claims that do involvepublic vessels).

6. Cranford at *2.7. Id. at *3 (quoting U.S. v. Gaubert, 499 U.S. 315,

322-23 (1991)).8. Cranford at *2.9. Id.10. Id.11. Id. at *3.12. Id. at *4.13. Id.14. Id. (2d alteration in original).15. Id. at *5 (alteration in original).16. Id. at *4.17. Id. at *2.18. Id. at *5.19. Id.20. Id.21. Id. (emphasis added) (alteration in original).

Photograph of sunken wreck courtesy of NOAA’s Ocean Explorer.

Page 8 WATER LOG 2006 VOL. 26:3

Hellenic Investment Fund, Inc. v. Det Norske Veritas,2006 WL 2567462 (5th Cir. Sept. 7, 2006)

Allyson L. Vaughn, 3L, University of Mississippi Schoolof Law

In September the U.S. Court of Appeals for the FifthCircuit held that the purchaser of a cargo ship wassubject to the terms of a forum selection clause con-tained in a contract between the seller and a classifi-cation society.

BackgroundHellenic Investment Fund, Inc. (Hellenic) purchaseda cargo ship, the M/V Marianna, from the ship-own-ing company Inlet Navigation Company (Inlet). Inletcontracted with Det Norske Veritas (DNV), an inter-national classification society, to class the ship before,during, and after the sale. Hellenic relied uponDNV’s issuance of a clean class confirmation certifi-cate in purchasing the ship. After the purchase wascompleted, the ship, which was renamed the M/VTranquillity, underwent inspection by Hellenic’sinsurance company, the P&I Club. This inspectionrevealed deficiencies that DNV should have discov-ered, and resulted in problems obtaining insurancecoverage for an impending voyage. The ship was senton at least two voyages and underwent port-statecontrol inspection in Montreal, Canada, which alsoraised concerns regarding its condition. Hellenicultimately sold the Tranquillity.

Hellenic, relying on the Fifth Circuit’s decision inOtto Candies, L.L.C. v. Nippon Kaiji Kyokai Corp.,1

filed claim in the U.S. District Court for the SouthernDistrict of Texas against DNV for fraudulent misrep-resentation in the classification documents. The classi-fication certificate provided that it was issued underthe DNV’s Rules. The Rules contained a forum-selec-tion clause providing that any dispute related to theRules must be resolved by the Municipal Court ofOslo, Norway. DNV moved for dismissal and soughtto enforce the clause. The District Court found thatHellenic, although not a signatory to the DNV-Inletcontract, was bound by the terms of DNV’s Rules anddismissed the suit. Hellenic then appealed to the Fifth

Circuit on the grounds that enforcing the forum-selec-tion clause was unreasonable under the circumstances.

The Court’s AnalysisFederal courts have held that if some written agreementto arbitrate exists, third parties may be held to submitto arbitration, although such arbitration agreementsapply to third parties only in rare circumstances.2 Thereare six recognized theories to bind a nonsignatory to anarbitration agreement: (1) incorporation by reference,(2) assumption, (3) agency, (4) veil-piercing/alter-ego,(5) estoppel, and (6) third-party beneficiary. DNVargued at trial that Hellenic is bound to the clauseunder the theories of estoppel, third-party beneficiaryand implied-in-fact contract. The Court of Appeals dis-cussed only the estoppel claim.

EstoppelDirect-benefit estoppel “involve[s] non-signatorieswho, during the life of the contract, have embracedthe contract despite their non-signatory status, butthen, during litigation attempt to repudiate the arbi-tration clause in the contract.”3 Hellenic argued thatthe doctrine did not apply for two reasons: (1) theyreceived no benefit from the services of DNV, and (2)the suit is based on negligent misrepresentation, not acontract claim.

The court relied on the Second Circuit decision inAmerican Bureau of Shipping v. Tencara Shipyard S.P.A.4

to reject Hellenic’s claims. The facts of that case are verysimilar to those in the case at hand. The Second Circuitapplied direct-benefit estoppel to “bind non-signatoryvessel owners to a forum-selection clause in a contractbetween the classification group and shipyard.”5 Thecourt also held that because of the contract between theclassification society and the shipyard, the owners oper-ated the ship under the French flag more cheaply, thusbenefiting directly from the contract. The benefit theowners received from the contract between the othertwo parties was sufficient to bind them to the contract’sarbitration clause.

The Fifth Circuit turned to the record to supportits finding that Hellenic benefited from the contractbetween DNV and Inlet. Hellenic admitted that hadthe condition of class (certificate) not issued it would

Fifth Circuit Upholds Forum-Selection Clause in Ship Deal

VOL. 26:3 WATER LOG 2006 Page 9

not have purchased the ship.6 Additionally, Hellenic’scomplaint stated that DNV should have known its rep-resentations were for the “guidance and benefit” ofHellenic in a business transaction.7 Therefore, by DNVperforming the conditions of the contract with Inlet,Hellenic benefited at the time of purchase.

The court also rejected Hellenic’s argument thatthe claim is not founded in contract law. Hellenic’sclaim resulted from DNV’s failure to follow its ownrules when classifying the ship. The same Rules bywhich Hellenic alleged DNV made the misrepresenta-tions contain the forum-selection clause. The courtfound that “Hellenic cannot embrace the Rules bybringing a claim . . . alleging, in essence, a violation ofthe DNV Rules without accepting the consequences ofthose Rules.”8

Therefore, Hellenic was estopped from rejectingthe contract and the included forum-selection clause.

EnforcementHellenic further maintained that the forum-selectionclause was not enforceable because it was unreasonableunder the circumstances.9 Hellenic based this claim onthe grounds that the clause was not a negotiated termbetween Hellenic and DNV. However, the Fifth Circuithas continually relied on the Supreme Court’s holdingthat “a nonnegiotatedforum clause . . . isnever enforceablesimply because it isnot the subject ofbargaining.”10 Thecourt supported itsfinding with the un-disputed fact thatHellenic had actualknowledge that theDNV Rules applied.Hellenic’s knowl-edge along with thepresumption thatfederal courts “mustenforce forum selec-tion clauses in inter-national transactions”supported the courtin finding the DNVf o r u m - s e l e c t i o nclause enforceable inthis case.

ConclusionThe Fifth Circuit found that the district court properlydismissed the suit and enforced the forum-selectionclause.

Endnotes1. 346 F.3d 530 (5th Cir. 2003).2. Bridas S.A.P.I.C. v. Govt. of Turkm., 345 F.3d 347,

358 (5th Cir. 2003).3. E.I. DuPont de Nemours & Co. v. Rhone Poulenc

Fiber & Resin Intermediates, S.A.S., 269 F.3d 187,200 (3d Cir. 2001).

4. 170 F.3d 349 (2d Cir. 1999).5. Hellenic, 2006 WL 256742 at *3.6. Id. at *4.7. Id.8. Id.9. Hellenic relied on M/S BREMEN v. Zapata Off-

Shore Co., 407 U.S. 1, 10 (1972), for the theorythat forum-selection clauses, “although prima facievalid,” should not be enforced if “enforcement isshown by the resisting party to be unreasonableunder the circumstances.”

10. Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585(1991).

Photograph of cargo ship courtesy of The National Science Foundation.

Page 10 WATER LOG 2006 VOL. 26:3

Parm v. Shumate, Civ. Action No. 01-2624 (W.D. La.Aug. 29, 2006)

Josh Clemons

On August 29 the U.S. District Court for the WesternDistrict of Louisiana, Monroe Division, issued an opin-ion declaring that there is no federal common law orstate law right to fish and hunt on the Mississippi Riverwhen it inundates privately owned land. The opinionhas attracted considerable notice in the region, wheresuch a right has often been taken for granted.

BackgroundFor several years fishing and hunting enthusiasts,including the plaintiffs in this case, have sought toenjoy their sports on Gassoway Lake and adjacent smallwater bodies (collectively, Gassoway Lake) in EastCarroll Parish, Louisiana. Gassoway Lake is an oxbow-type lake that was formed when the main channel ofthe Mississippi River meandered westward in the 1860sand 1870s, then migrated back to the east by the end ofthe 1800s. When the river moved eastward the lake wasisolated from the main channel.

The Mississippi River is now three and a half mileseast of Gassoway Lake. The lake is accessible by boatonly when the river is at its annual flood height. Duringother parts of the year the lake is essentially landlocked.The plaintiffs would access Gassoway Lake by floatingto it while the river is high.

The land surrounding and underlying GassowayLake belongs to Walker Lands, Inc. Walker Lands hasattempted to exclude people from the lake by postingsigns and, more actively, by filing trespassing chargeswith the sheriff of East Carroll Parish.1 The plaintiffsin this case were among those arrested by the sherifffor trespassing.

The plaintiffs filed suit, asking the court to (1) findthat the sheriff lacked probable cause to arrest themunder the Louisiana trespass statute,2 (2) declare thatthe sheriff could not prove that the plaintiffs were,beyond a reasonable doubt, guilty of trespass, and (3)issue a permanent injunction prohibiting the sherifffrom enforcing the trespass statute on Gassoway Lake.

The case was first heard by Magistrate Judge JamesD. Kirk, who issued a report and recommendation.

The Magistrate’s RecommendationThe legal question before Magistrate Judge Kirk wasthis: “whether the public, including the Plaintiffs, havethe federal right or state right to navigate, fish andhunt, and otherwise exploit, enjoy and utilize the fullwater surface of the Mississippi river at its normal waterheights.”3 Magistrate Judge Kirk began by examiningthe plaintiff ’s rights under the federal statutes and thefederal navigational servitude.

When new states are admitted to the Union, theytake title to the land and waters within their bound-aries. However, the federal government retains theauthority to ensure that all navigable waterways remainnavigable as “highways for commerce, over which tradeand travel are or may be conducted in the customarymodes of trade and travel on water.”4 This restriction,which has its roots in Congress’ constitutional authori-ty to regulate interstate commerce, is known as the fed-eral navigational servitude.

The servitude has been codified in 33 U.S.C. § 10:“[a]ll the navigable waters in the former Territories ofOrleans and Louisiana shall be and forever remain pub-lic highways.” Magistrate Judge Kirk opined that thestatute only protects the public right to navigate on theriver; it does not grant the right to fish and hunt.Similarly, the federal navigational servitude itself focus-es on the protection of navigation for commercial pur-poses and not on hunting and fishing.

However, Magistrate Judge Kirk found that federalcommon law (case law) recognizes a right of navigationthat includes hunting and fishing, which extends to thehigh water mark. The cases Magistrate Judge Kirk citedin support of this right were the 1824 U.S. SupremeCourt decision in Gibbons v. Ogden, which establishedthe right of all persons to the use of open navigablewaters, and the 1931 Fifth Circuit decision in SilverSprings Paradise Co. v. Ray, in which that court declaredthat the public right of navigation “entitles the publicgenerally to the reasonable use of navigable waters forall legitimate purposes of travel or transportation, forboating or sailing for pleasure, as well as for carryingpersons or property for hire, and in any kind of watercraft the use of which is consistent with others alsoenjoying the right possessed in common.”5 MagistrateJudge Kirk interpreted these two cases as establishingthe right.

La. Court Finds No Right to Fish, Hunt on River

VOL. 26:3 WATER LOG 2006 Page 11

Magistrate Judge Kirk also examined state law. TheLouisiana Civil Code provides the public right to usethe state’s navigable waters, at any stage. Furthermore,Louisiana case law has recognized the public’s “tradi-tional right to fish from boats in the navigable waters ofthe state.”6 Magistrate Judge Kirk noted that otherstatutes concerning the public’s right to use marinewaters reflected Louisiana’s “strong public policyregarding citizens’ rights to fish in public waters”including fresh waters.7 He concluded that, underLouisiana law, the public has the right to use theMississippi River up to the ordinary high water stagefor “at the very least, those traditional uses of navigation(including travel and transportation), commerce, boat-ing, sailing, and fishing and hunting from boats.”8

Based on this reasoning, the magistrate judge rec-ommended that the district court enter judgment infavor of the plaintiffs, and declare that they are entitledby state and federal law to use the Mississippi River forboating, fishing, and hunting up to the ordinary highwater stage.

The District Court’s DecisionJudge Robert James of the U.S. District Court adoptedsome of Magistrate Judge Kirk’s recommendations andrejected others. Judge James agreed that neither the fed-eral statutes nor the federal navigational servitude con-

ferred a right on the public to fish and hunt on theMississippi River. Judge James also agreed that the pub-lic has a right to use the river up to the ordinary highwater mark when it inundates private lands.

However, Judge James did not agree that the pub-lic’s right to use the river encompasses fishing and hunt-ing. With respect to the federal common law right,Judge James took issue with Magistrate Judge Kirk’sinterpretation of the Silver Springs case. Judge Jameschose not to interpret Silver Springs as expansively asMagistrate Judge Kirk did. Because “the Fifth Circuitdid not specifically find that the public has a federalcommon law right to fish or hunt on a navigable sourceof water” Judge James reasoned that the right was lim-ited to “legitimate purposes of travel or transportation,for boating or sailing for pleasure, as well as carryingpersons or property for hire.”9

Judge James also rejected Magistrate Judge Kirk’s rea-soning that the plaintiffs had a state law right to hunt andfish from their boat over inundated private lands. JudgeJames based his reasoning on a Comment to the section ofthe Louisiana Civil Code that provides for the public rightof navigation. The Comment states that the right “is notfor the use of the public at large for all purposes but mere-ly for the purposes that are incidental to the navigablecharacter of the stream and its enjoyment as an avenue ofcommerce.”10 Citing Second Circuit and Louisiana prece-

dent in support of his posi-tion, Judge James declaredthat hunting and fishing arenot incidental to navigationand the public therefore hasno right to engage in thoseactivities on inundated privateland. For that reason, thecourt ruled that the sheriff hadprobable cause to arrest theplaintiffs for trespass.

ConclusionThis case has sparked muchdiscussion in the regionbecause it runs counter towhat many considered to bethe settled state of affairs,which was that one may fishor hunt from a boat on anynavigable waters that onecan lawfully access. Theplaintiffs petitioned the

See Right to Fish and Hunt, page 14

Photograph of wild turkey courtesy of the Louisiana Department of Wildlife and Fisheries.

Page 12 WATER LOG 2006 VOL. 26:3

Bertucci Contracting Corp. v. M/V Antwerpen, No.04-31200 (5th Cir. Sept. 19, 2006)

Josh Clemons

In September the U.S. Court of Appeals for the FifthCircuit affirmed an admiralty decision from the U.S.District Court for the Eastern District of Louisiana inNew Orleans. The case involved an allision of vessels onthe Mississippi River.

BackgroundThis legal dispute arose from a vessel collision thatoccurred on January 19, 2003 on the Mississippi Rivernear New Orleans. In the wee hours of that fatefulmorning there were several vessels navigating theCarrollton Bend, near Nine Mile Point, below theHuey P. Long Bridge. Headed downbound (south) werethe Bayou Black, the Beverly Anderson, and the tugboatLady Jeanette, which was pushing four loaded barges intwo-by-two configuration. Headed in the oppositedirection were the Alice Hooker and the Antwerpen, anenormous oceangoing bulk freighter.

The Lady Jeanette’s captain, Kenneth Ayars, and theAntwerpen’s river pilot, Teal Grue, communicated byradio about the best way to pass each other on thecrowded river. Pilot Grue planned to overtake the AliceHooker as she held up on the river’s west bank, then passthe Beverly Anderson starboard-to-starboard (a “two-whistle” passing). Pilot Grue and Captain Ayars agreedto have their vessels pass each other port-to-port (a“one-whistle” passing).

The Lady Jeanette and the Antwerpen passed eachother without incident. Immediately after the passage,however, the Antwerpen allided with a stationary fleet ofbarges along the left descending bank across from NineMile Point. The barges were owned by BertucciContracting, Inc. (Bertucci). The Antwerpen was ownedby the Marvita Shipping Company (Marvita).

Bertucci sued Marvita and the Antwerpen (in rem)for damages from the crash. Marvita said that the LadyJeanette broke the passing agreement by heading direct-ly at the Antwerpen instead of sticking close to shore,and that this action forced Pilot Grue to maneuver the

Antwerpen in such a way that allision with the bargeswas inevitable. Captain Ayars disputed this characteri-zation of the event, saying that he had set his course insuch a way that it would have been impossible to col-lide with the Lady Jeanette.

Marvita filed a third-party complaint and a separateadmiralty claim against the Lady Jeanette, its owner, andits operator (collectively, Lady Jeanette). These claimswere consolidated for the trial. Bertucci and Marvitasettled their dispute, so only Marvita’s claims againstthe Lady Jeanette were tried.

At trial, the district court found that Pilot Gruecaused the allision by failing to maintain proper steer-ageway,1 and that the Lady Jeanette had abided by thepassing agreement. The court entered judgment for theLady Jeanette. Marvita appealed the judgment to theFifth Circuit.

Fifth Circuit DecisionMarvita asserted on appeal that a new trial was neces-sary because the Lady Jeanette created the risk of allisionand violated several navigation rules as a matter of law.Marvita argued that it was therefore up to the LadyJeanette to prove that her actions were not contributoryand proximate causes of the allision.

To prevail before the appeals court, Marvita wouldhave to show that the district court’s factual findingswere clearly erroneous. This standard is a formidableone to meet, particularly when, as here, much of the

Fifth Circuit Affirms Decision inMississippi River Ship Collision Case

The appeals court held thatthe full context of

Ayars’ statements supportedthe district court’s finding.

VOL. 26:3 WATER LOG 2006 Page 13

evidence is testimony. The appeals court will give greatdeference to the fact that the finder of fact – here, thetrial court – was able to observe the witnesses directlyand judge their credibility.

Marvita set out to convince the appeals court thatCaptain Ayars’ own testimony established that he didnot comply with the passing agreement and violated atleast one of four Inland Navigational Rules: Rule 7(Risk of Collision), Rule 8 (Action to Avoid Collision),Rule 9 (Narrow Channels), and/or Rule 14 (Head-onSituation).2 According to Marvita, the Lady Jeanettecreated a risk of collision which, by the rules of navi-gation, requires the vessels to turn to starboard andpass each other on the port side. Marvita alleged thatthe Lady Jeanette turned to port instead. Marvitaargued that the evidence at trial required the districtcourt to find that the Lady Jeanette violated at least onenavigational rule, which would then trigger analysisunder the Pennsylvania rule, bywhich the Lady Jeanette would haveto prove that her navigation was nota contributory and proximatecause of the allision.3 Therefore,Marvita asserted, a new trial wasnecessary.

The appeals court examinedthe contested evidence piece-by-piece. Marvita offered evidence toshow that the Lady Jeanette hadfailed to navigate close to the rightdescending bank, as had beenagreed upon by Captain Ayars andPilot Grue. Captain Ayars contra-dicted that evidence with testimo-ny and sketches of the position ofthe ships’ lights during the maneu-ver. The appeals court, uncon-vinced by Marvita’s version of theconflicting evidence, deferred to the district court’sacceptance of Captain Ayars’ testimony.

Marvita also pointed out that Captain Ayars hadadmitted to violating the passing agreement when hetestified that he “fell off ” Nine Mile Point, whichwould indicate that he had not navigated close to theright descending bank.4 The appeals court, implyingthat Marvita was cherry-picking testimony, observedthat Captain Ayars had given additional testimony thatprovided context to his “fell off the point” statement.The appeals court held that the full context of Ayars’statements supported the district court’s finding.

There was additional support for the district court’sfinding. Neither vessel’s deck log recorded an incident,which would have likely been the case if there had beena close call like the one Marvita alleged. Radio trans-missions provided conflicting evidence: at one point inthe maneuver Pilot Grue expressed doubt to the LadyJeanette about her navigation, but the appeals courtnoted that he never asked for more room, and thatCaptain Ayars radioed that Grue’s vessel had ampleroom. The appeals court found Marvita’s heavy relianceon one particular transmission, in which Grue says“hard over…laying beside me,” combined with Grue’sassertion at trial that he never would have said that ifthe vessels were at a safe distance, to be misplaced.Giving considerable deference to the trial court, theappeals court declared that “the district court was freeto weigh the evidence as it saw fit and did not have tocredit Pilot Grue’s testimony.”5

At trial the Lady Jeanette had also introducedexpert testimony from a Captain Strouse, who pre-sented his opinion that the Antwerpen went off coursebecause it failed to maintain steerageway, whichallowed the current to push the vessel towards thebank. This testimony contradicted that of the captainof the Alice Hooker, who praised Pilot Grue’s effortsand in doing so suggested that the Lady Jeanette was atfault. Nonetheless, the appeals court remained uncon-vinced that the district court had erred by acceptingCaptain Strouse’s testimony.

Photograph of barge approaching Huey P. Long Bridge courtesy of New Orleans Baton Rouge Steamship Pilot Examiners.

See Ship Collision, page 14

Page 14 WATER LOG 2006 VOL. 26:3

Marvita also attempted to convince the appealscourt that the Lady Jeanette had violated specificNavigation Rules governing passage in narrow channelsand the risk of collision. Once again, the appeals courtobserved that the district court could have plausiblycredited the Lady Jeanette’s evidence that she passedsafely in the channel and that the two vessels were neverat risk of colliding.

Marvita finally argued a point of law: that the districtcourt had misunderstood the meaning of the term “riskof collision.” According to Marvita the lower court hadmistakenly believed that “risk of collision” meant that acollision had to be imminent. However, the district courtfound that even the risk of collision was not imminent,so Marvita’s argument, even if valid, was unavailing.

ConclusionDespite Marvita’s efforts, the Fifth Circuit was not con-vinced that the district court’s findings and conclusionsof law were clearly erroneous. The judgment in favor ofthe Lady Jeanette was affirmed.

Endnotes1. Steerageway is “the minimum rate of motion need-

ed to maneuver the vessel.” Bertucci ContractingCorp. v. M/V Antwerpen, No. 04-31200, at 11 (5thCir. Sept. 19, 2006).

2. 33 U.S.C. §§ 2007-9, 2014. 3. See The Pennsylvania, 86 U.S. 125 (1873).4. Bertucci Contracting Corp. at 10.5. Id. at 11.

court to reconsider, and Judge James reaffirmed hisopinion. The plaintiffs have appealed the case to theU.S. Court of Appeals for the Fifth Circuit. Water Logwill continue to follow its progress.

Endnotes1. The sheriff is Mark W. Shumate, the named defen-

dant in the case.2. “No person shall enter upon immovable property

owned by another without express, legal, or impliedauthorization.” La. R.S. 14:63(B).

3. Parm v. Shumate, 2006 WL 2513856 at *4 (W.D.

La. April 21, 2006) (“Magistrate’s Report”).4. Id. at *5 (quoting The Daniel Ball, 77 U.S. 557

(1870)).5. Gibbons v. Ogden, 22 U.S. 1 (1824); Silver Springs

Paradise Co. v. Ray, 50 F.2d 356 (5th Cir. 1931).6. State v. Barras, 615 So. 2d 285 (La. 1993).7. Magistrate’s Report at *11.8. Id.9. Parm v. Shumate, Civ. Action No. 01-2624 at 7

(W.D. La. Aug. 29, 2006).10. La. Civ. Code art. 456, comment (b) (internal

quotes omitted).

Right to Fish and Hunt, from page 11

Ship Collision, from page 13

The Mississippi-Alabama Sea Grant Legal Programis pleased to announce the publication of an articleby research associate Jim Farrell and MarieQuint in, A Practitioner’s Guide to ProtectingWetlands in a Post-Rapanos World, 36 EnvironmentalLaw Reporter 10814 (2006).

The recent plurality opinion of the U.S. SupremeCourt in Rapanos v. United States left questions aboutfederal jurisdiction under the CWA. Justice Scalia’splurality opinion calls for a limited approach whenanalyzing which wetlands fall within the jurisdictionof the U.S. Army Corps of Engineers; however,

Justice Kennedy’s concurrence requires a “significantnexus” standard.

In this article, Farrell and Quintin help clarifythe opinion and examine its impact on determiningjurisdiction over wetlands. The authors first explainhow to construe a plurality opinion. The article thenexplains the tests outlined by both Justices. The arti-cle also contains a “jurisdictional wetlands test,” tohelp determine whether the federal government hasjurisdiction over wetlands. The appendix provides auseful chart comparing the language used by JusticeScalia and Justice Kennedy.

Publication Announcement

VOL. 26:3 WATER LOG 2006 Page 15

Interesting ItemsAround the Gulf…

Gulf LNG has signed an agreement with the Port of Pascagoula and the Jackson County (Miss.) Board of Supervisorsto lease one hundred acres for a liquefied natural gas terminal. Although it will take at least three years to constructthe $600 million facility, the county and the port will begin enjoying monetary benefits much sooner than that.During construction of the terminal the port will receive $233,000 per year, and the Mississippi Tidelands TrustFund will receive $116,000 per year. Those figures will increase to $500,000 per year after the terminal is complete.The county will collect taxes during construction as well. Schools are expected to receive about $5.6 million per yearafter the plant is up and running.

Several of the Gulf region’s most prominent institutions of higher learning have joined forces to form the NorthernGulf Institute to study ecological and environmental issues of interest to the region. Members of the Institute includethe Dauphin Island Sea Lab, the University of Southern Mississippi, Mississippi State University, Louisiana StateUniversity, and Florida State University. The Institute will work with the National Oceanic and AtmosphericAdministration (NOAA). Most of the Institute’s scientists will work out of the Stennis Space Center in HancockCounty, Mississippi.

Environmental groups are suing the National Marine Fisheries Service (NMFS) to stop the fishing of one of theGulf ’s tastiest species, the bluefin tuna. Earthjustice (the legal arm of the Sierra Club) and the Blue Ocean Institutetook action after NMFS refused their petition to close 125,000 square miles of the Gulf to fishing when the tuna arespawning. While it is already illegal to fish directly for bluefin in U.S. waters, many of the increasingly valuable fishare taken incidentally by fishers pursuing other species. These bluefin are then sold, legally, in U.S. ports. The envi-ronmental groups argue that NMFS is required to put a stop to this trade. Bluefin stocks have been declining forover twenty years, the groups say.

The Mississippi Department of Environmental Quality (MDEQ) has levied a $65,000 fine against the DuPontCorp. for permit violations at its First Chemical plant in Pascagoula. The violations included failure to record infor-mation, damage to the groundwater remediation system, failure to timely test smokestack emissions, and excessiverelease of chlorine. The violations are not thought to have affected the environment significantly. DuPont officialssay they have addressed and resolved the problems.

NOAA is building a new $15 million vessel to map the ocean floor, and the task of designing and constructing theship is being undertaken by Mississippi shipbuilder VT Halter Marine. The Swath CMV will feature side-scan andmulti-beam sonar, which will be used in NOAA’s ongoing efforts to survey the ocean floor and keep nautical mapsup-to-date.

The U.S. Department of Energy is considering additional Gulf region locations for the Strategic Petroleum Reserve.The five sites being considered are the Richton salt dome in Richton, Mississippi; the Bruinsburg salt dome nearVicksburg; the Chacahoula and Clovelly domes in Lafourche Parish, Louisiana; and Stratton Ridge in BrazoriaCounty, Texas. The Strategic Petroleum Reserve stores crude oil for times of emergency. Salt caverns are used becauseof their security and low cost.

Around the country…

The humble bluegill (a.k.a. bream or sunfish), familiar to freshwater cane-pole anglers everywhere, is helping fightterrorism in our big cities. Because of their sensitivity to certain toxins that could be used in a terror attack, the bravefish are being used to monitor municipal drinking water supplies in places like New York City, San Francisco, andWashington D.C. The fish perform the same noble duty as the proverbial canary in the coal mine.

Mississippi-Alabama Sea Grant Legal ProgramKinard Hall, Wing E, Room 262P.O. Box 1848University, MS 38677-1848

WATER LOG

WATER LOG (ISSN 1097-0649) is supported bythe National Sea Grant College Program of theU.S. Department of Commerce’s NationalOceanic and Atmospheric Administration underNOAA Grant Number NA16RG2258, theMississippi-Alabama Sea Grant Consortium,State of Mississippi, Mississippi Law ResearchInstitute, and University of Mississippi LawCenter. The views expressed herein do not neces-sarily reflect the views of any of those organiza-tions. The U.S. Government and the Mississippi-Alabama Sea Grant Consortium are authorizedto produce and distribute reprints notwithstand-ing any copyright notation that may appearhereon. Graphics and/or photographs by©Nova Deve lopment Corp. , U.S.D.A.,Florida State University, Washington StateTreasurer’s Office and NOAA.

The University complieswith a l l appl icable lawsregarding affirmative actionand equal opportunity in allits activities and programsand does not discriminateagainst anyone protected by

law because of age, creed, color, national origin, race,religion, sex, disability, veteran or other status.

MASGP-06-009-03This publication is printed on recycled paper.

November, 2006

Page 16 WATER LOG 2006 VOL. 26:3

• • • Upcoming Conferences • • •

•JANUARY 2007 •4th Intl Conference on Remediation of Contaminated Sediments

January 22-25, 2007, Savannah, GAhttp://www.battelle.org/sedimentscon

Third National Water Resources Policy DialogueJanuary 22-23, 2007, Arlington, VA

http://www.awra.org/meetings/DC2007/index.html

•FEBRUARY 2007 •Environmental and Toxic Tort LitigationFebruary 1-2, 2007, New Orleans, LA

http://ali-aba.org

Aquaculture 2007: Science for Sustainable AquacultureFebruary 26-March 2, 2007, San Antonio, TX

http://www.was.org

•MARCH 2007 •Coastal Geotools '07

March 5-8, 2007, Myrtle Beach, SChttp://www.csc.noaa.gov/geotools/

Paying for Sustainable Water InfrastructureMarch 21-23, 2007, Atlanta, GAhttp://www.payingforwater.com

The SoL Forum on Business Innovation for SustainabilityMarch 27-30, 2007, Atlanta, GAhttp://www.solsustainability.org/